FOI Advice Part II – Especially About Education

Back in May, I explained how to make a Freedom of Information Act (FOIA) request in 8 Easy Steps. That info is good for just about any type of FOI request.

In this blog I want to get into the specifics of making requests about education things. And then in a final blog, coming soon!, I’ll do a sort of ‘Advanced Guide to FOI-ing For Info Ninjas’.

1. What should you know about FOI if you work IN education?

Who is covered by FOI?  The Department for Education, obviously, but they might not be the right place for the information you want – not least because the DfE is split into several parts, including the National College and the Education Funding Agency. In addition: local authorities, academy trusts, Ofsted, Ofqual, and …dun dun duuuun… individual schools are also covered by the Act.

Um…Does this mean teachers are FOI-able?! Yes. (Well, schools are). Almost all public bodies wholly paid for by taxpayers are covered under FOIA, and this includes schools. While most receive few FOI requests, there’s no reason why people can’t submit them and as people become more aware of their rights, you should expect they will.

What sort of things can people ask for? Everything. They can ask for everything. They can ask to see your lesson plans, your emails, your letters, your written reports. Everything. The question is whether or not the school must hand it over. There are 23 exemptions under which an authority can withhold information. Some of these will apply to schools, some won’t. For example, ‘issues of national security’ rarely happen in the head’s office. Before using most exemptions schools must consider if the public interest is better served by the release of the information, even if covered by an exemption.

Judging the balance of public interest is tricky and can be appealed. A good rule of thumb is expecting that anything recorded might well be asked for, and if it is, there’s assume a requestor might eventually get to see it (even if only with personal details redacted out). Hence, be professional in your writings.

Doesn’t this breach my personal privacy rights? It shouldn’t. If giving out requested information would give away sensitive personal data, then it is covered be a ‘personal data’ exemption. That said, if you teach a class to children it is going to be difficult to argue that your identity as a teacher at the school, or the contents of your lessons constitute ‘private information’.

Wait! Does this mean I have to hand my lesson plans over to third parties? What if I want to sell them? This is a good question and (I think) so far is uncontested in court. Schools and academy trusts are increasingly using Section 43, an exemption regarding Commercial Interests, to avoid answering Freedom of Information requests. I’m not sure how this would go if taken to tribunal, though. Past cases drew a distinction between ‘commercial interests’ and ‘financial interests’ – with finance referring to the management of money and ‘commercial’ referring to market position. Because schools are theoretically non-profit this puts them in an odd situation of falling more on the financial than commercial side, but if goods can be sold in a market (e.g. packages of lessons) then it becomes more complicated. Frankly, I don’t know the answer. But I’d be careful about assuming that lesson plans (or anything else) are protected by a price tag.

2. What you need to know when MAKING education requests

The most common ‘get out’ clauses  see used by the DfE are Section 36 (prejudice to the conduct of affairs), Section 40 (personal data), Section 22 (the “we’re going to publish it in future” argument), and Section 32 (records that only exist for inquiries, tribunals or legal cases).

The important thing to remember is that each of these exemptions is much more specific than it first seems. So, if a public authority says to you that it is using Section 36 because “releasing this information will prejudice the conduct of our affairs”, they can’t just say that it will, they have to demonstrate that there is a likelihood of prejudice (i.e. >50% chance). Claiming  as a mere possibility is not enough to wriggle out of the request (though that’s almost always what they will do in the first instance).

Likewise, Section 32 – an exemption that states information held on file for legal or political inquiries is exempt from release – can be used when the information was only held for this reason, not if it just happens to be part of an inquiry. (Again, this won’t be made clear to you).

Given that these niggly criteria are rarely ever mentioned in your response, it’s very important when you receive an answer that you CHECK if the cited exemption is being used properly.

The easiest way to do that is via the ICO guidance documents, which you can google. The ICO guidance on Section 36 is here, for example. It explains what sort of questions a judge would use to see if the exemption is used correctly. ALWAYS read the guidance document to see if the criteria have been met. You will be amazed how often it is not.

Another common get-out clause from schools and the DfE is Section 12 (cost). A back-up option if that doesn’t do it is Section 14 (vexation).

The FOI Act states that central governments can spend up to £600 on a request, which is 24 hours of time. Schools can spend up to £450 (18 hours). If a request is going to take longer than this to fulfil then the request can be rejected. The cost of redacting information to cover personal information cannot be taken into account for cost (however it can be considered of the Section 14 ‘vexation’ exemption).

In either case, it’s worth being aware when you make a request that you need to keep it straightforward. If it is too expensive to complete it will be ruled out.That said, if the request is too large the public authority ought to tell you this and allow you to resubmit a revised request.

The ‘Vexation’ exemption can also be used if your request is harassing or obsessive. To solve this one, don’t be harassing or obsessive in tone or behaviour.

Academy Trusts & Local Authorities are increasingly relying on Section 43 “Commercial Interests”

As mentioned above, it is trendy among schools and education authorities to use Section 43, the ‘commerical interests’ exemption. A local authority recently told me it couldn’t provide information about a school because it was a ‘trade secret’. I’m unconvinced that this would stand up in court, but I don’t know the case law. If you are faced with Section 43, I would challenge the authority to show that the prejudice to their commercial interest is likely. Remember, just saying that a commercial interest exists is not enough. Saying that commercial interests might be damaged is also not enough. Possibility is not likelihood – and likelihood is the threshold.

The other thing authorities do is ignore you completely.

This is annoying. My final FOI post will give a few techniques for dealing with delay. In short, however: Send polite reminders. Phone. Give a fixed deadline reminding that if the authority continues to be non-compliant you will complain to the ICO. Wait. Wait. With heavy heart, complain to the ICO.

Non-compliance is non-compliance; it needs reporting.

 3.In Summary…

If you work in education, assume information you hold is FOIable. Keep it in places where it is easy to access and easy to understand.

If you are making requests: pre-empt costs, try to reduce the burden, seek info from the right source, CHECK any cited exemption is used correctly, beware “commercial interests” and diarise reminders.  Finally, don’t be mean to the people whose job it is to reply. Polite but persistent is always the best option.


One thought on “FOI Advice Part II – Especially About Education

  1. Thanks for this, Laura. Also worth mentioning is that schools are allowed more time to respond than other organisations in order to take into account school holidays.

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